DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

  ex-SR, USN
Docket No. ND05-00439

Applicant’s Request

The application for discharge review was received on 20041227.  The Applicant requests the characterization of service received at the time of discharge changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050428.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Discharge and Dismissal Review Board,

My name is P_ S_ (Applicant).  I am writing you this letter to request that my DD214 be changed from RE Code 4 other than honorable discharge, to a General under honorable conditions.  I am asking this of the board so that I may come back into the Active Duty Army.  I am currently an E3 Private First Glass in the Massachusetts Army National Guard, fulfilling a 2 year obligation.  I am doing very well in my unit and I am very happy to be there.  However, I would like to serve my country on a full time basis, but my RE Code stops me from this.  The misconduct you see on my record was due to my own immaturity and hanging out with the wrong crowd.  I was driving while under the influence of alcohol, and a fellow seaman had some marijuana on his person.  The police charged all of us with having a controlled substance.  I owned my side of the incident with the DUI, successfully attended a counseling class.  The charges were dropped because I stood up for my end of the situation and volunteered to attend the classes in which I have submitted copies of my certificate of completion.  I have learned a valuable life skill from this situation through the help of the United States Navy.  I am asking for a second chance to prove myself.  I truly miss being part of the Active Duty Military.  In talking with SFG R_ A. L_ in Springfield, MA I have decided to try and serve again on a full time basis with your approval.  I am now married with a 2 year old son and a home.  I do hope you can give me this second chance to serve in uniform full time, for my country.
P.S. I have enclosed my POS from the Navy and last evals.
Thank you for your consideration,
Sincerely,
[signed]
P_ S_ (Applicant)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, dated December 09, 2005 (3)
Letter from Applicant, Dated March 13, 2005
Worksheet for separation (2)
Evaluation Report and Counseling Record, dated July 14, 1999
Personnel Qualification Standards, NAVPERS 1070/604
Certificate of completion, dated August 12, 1998
Certificate of completion, dated June 9, 2000 (2)
Discharge/continued care plan from Coastal Bend Outpatient Services, dated June 9, 2000
Letter from County Attorney, San Patricio County, dated June 22, 2000
Letter from Senate Minority Leader, dated April 28, 1998

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	971224 - 980120	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980121		Date of Discharge:  000619

Length of Service (years, months, days):

	Active:    02  04  29
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

971224:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver approved.  

990923:	NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc of controlled substance on 990803.
	Award: Forfeiture of $479.79 per month for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

000619:	DD Form 214: Applicant discharged discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), authority:  NAVMILPERSMAN, Article 1910-146.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000619 under other than honorable conditions by reason of misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

There is credible evidence in the record of the Applicant’s illegal drug abuse.  In order to maintain proper order and discipline within the naval service, possession is a form of abuse.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug abuse, thus substantiating the misconduct for which he was separated The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Though the NDRB recognizes your valuable service to our country through your participation in the Massachusetts Army National Guard, this alone is not enough to recharacterize based upon post-service conduct.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, copies of performance evaluations from Massachusetts Army National Guard, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

The Applicant contends that his problems in the Navy can be attributed to his “immaturity and hanging out with the wrong crowd”.  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023